Dominic v. Kottayam Municipality — 1996 DIGILAW 535 (KER)

Judgment :- Mohammed Shafi, J. O.P. 12706/95 is filed by the petitioners seeking for the issue of a writ of mandamus, or any other appropriate writ, order or direction', directing the respondents 1 to 3 not to permit the 5th respondent to construct the apartments as per the alleged wrongly sanctioned Plan violating the provisions of the Kerala Building Rules, 1984; the issue of a writ of mandamus or any other appropriate writ or order directing the 4th respondent not to grant any exemption from the Kerala Building Rules, 1984 in favour of the 5th respondent as disclosed in Ext. P2; the issue of a writ of mandamus or any other appropriate writ or order directing the respondents 1 to 3 to revoke the alleged wrongly issued licence granted by the 1st respondent as per LB No. 268/94-95 dated 2.5.1995 and to stay the construction of the building by the 5th respondent, pending disposal of the Original Petition. 2. O. P. No. 14351/95 is filed by the 5th respondent in O.P. 12706/95 for the issue of a writ of certiorari or any other appropriate writ or order quashing Ext. P3 order therein. 3. O.P. 14902/95 is filed by the 5th respondent in O.P. 12706/95 praying for the issue of a writ of certiorari or any other appropriate writ, direction or order quashing Exts. P6 and P7 therein and to declare that the petitioner is entitled to carry on the construction work as per the valid licence and permit obtained by him. 4. The petitioners in O.P. 12706/95 have alleged that the Kottayam Municipality originally gave sanction for the construction of an 8 storeyed building to accommodate 36 apartments as per the building permit L.B. No. 268/94-95 dated 2.5.1995, violating a number of provisions of the Kerala Building Rules, 1984 such as KBR 9(1),14(5)(a)(iii) and (vii), 17(2),18, 20(4) & (7),21(11)(a), 21(12)(f) and (g), 32(a)(i), 32(2)(iii) etc. and subsequently the 5th respondent has published a brochure declaring that they are constructing a 12 storeyed building with rooftop for accommodating 60 apartments without any valid sanction from the Municipality or the Government. Petitioners have also contended that the 5th respondent has approached the Government seeking sanction for enhancing the height of the building to 15 story's providing 78 apartments, violating a number of additional Kerala Building Rules over and above the violations contained in the original plan. Petitioners have also contended that the 5th respondent has approached the Government seeking sanction for enhancing the height of the building to 15 story's providing 78 apartments, violating a number of additional Kerala Building Rules over and above the violations contained in the original plan. According to them, the Municipality or the local authority has no power to issue building permit to any building which violates the Kerala Building Rules. It is also contended by the petitioners that even though the petitioners and some of the residents of the locality made representation to the 1st respondent and the Hon'ble Minister for Local Administration, they have not taken any steps to stop the construction of the building by the 5th respondent violating the Building Rules. Therefore, they have approached this Court for appropriate reliefs. 5. The 1st respondent-Municipality, as well as the 5m respondent builder has filed separate counter affidavit denying the allegations made in the O.P. According to them, the 1 st respondent has granted Ext. P2 permit i n favour of the 5m respondent to put up an 8 storeyed structure with plinth area of each floor as mentioned in Ext. P2, and the 5th respondent has approached the Government claiming exemption from the provisions of certain building rules and the Municipality has only' forwarded those applications to the Government for consideration. The 1st respondent has contended that if the 5th respondent violates any of the provisions of the Building Rules, the local authority has the power to take appropriate action against the builder for violating the Building Rules as per law. Therefore, respondents 2 and 5 vehement! y contended that there i s absolute! y no violation of any Building Rules as alleged by the revision petitioners. 6. When the Municipality issued the order dated 29.7.1995 directing the 5th respondent to stop the construction work on the ground that the 5th respondent is proceeding with the construction violating the Building Rules, they started pile casting work for the construction they filed O.P. 14351/95 seeking for the issue of appropriate writ quashing that order. On i ho basis of the stay order issued by this Court in CMP No. 25651/95 in that O.P. the pileing work has already been completed and the counsel for the revision petitioner (5th respondent in O.P. 12706/95) has submitted that the O.P. has become infructuous. 7. On i ho basis of the stay order issued by this Court in CMP No. 25651/95 in that O.P. the pileing work has already been completed and the counsel for the revision petitioner (5th respondent in O.P. 12706/95) has submitted that the O.P. has become infructuous. 7. On the basis of a petition filed by the petitioners in O.P. 12706/95 before the Minister for Local Administration, the Government of Kerala passed a stay order against the 5th respondent in O.P. 12706/95 from proceeding with the construction work and accordingly the Municipality issued notice dated 14.9.1995 to stay the execution of further construction. Therefore, the 5th respondent field O.P. No. 14902/95 seeking to quash the orders issued by the Government as well as the Municipality. This Court granted interim stay of operation of those orders by order dt.19.9.1995 in CMP No. 26672/95 filed in that O.P. and the construction work proceeded accordingly. 8. The counsel for the petitioner in O.P. 14902/95 submitted that no further step is taken by the Government and the Municipality on the basis of the temporary stay granted by this Court in that O.P, and therefore, O.P. 14902/95 has also become practically infructuous. Therefore, the contentions raised in O.P. 12706/95 alone need be considered at this juncture. 9. The petitioners in the O.P. 12706/95 vehemently contended that the 5th respondent is proceeding with the construction work in violation of the various Building Rules on the basis of the licence issued and the plan approved by the 1st respondent Municipality and therefore, the licence issued and the plan approved should be revoked. Even though, it is alleged in the O.P. by the petitioners that a large number of Kerala Building Rules are violated in this case, when the above O.P. came up for hearing the counsel for the petitioners confined his arguments only to allegations made in the O.P. 10. The first contention of the petitioners is that agricultural land is converted for the purpose of construction in this case in violation of R.2(29), Ch. I of the Building Rules. According to the petitioners, the construction operation by the 5th respondent in this case is contrary to the provisions of the development of lands as contemplated in R.2(29) Chapter I of the Building Rules. 11. I of the Building Rules. According to the petitioners, the construction operation by the 5th respondent in this case is contrary to the provisions of the development of lands as contemplated in R.2(29) Chapter I of the Building Rules. 11. The respondents have contended that the construction in this case is strictly in compliance with the development of land contemplated in R.2(29) of the Building Rules. It is pertinent to note that Kanhikuhi where the building is being constructed by the 5th respondent is a predominantly residential area and the 5th respondent is putting up the structure for providing residential apartments. The approved plan, licence etc. produced in this case show that there is no violation of the development of land as contemplated in R.2(29) of the Building Rules. 12. The next contention urged by the petitioners is that the provisions regarding fire escape Staircases as provided in R.21(12) of Chapter III of the Building Rules are violated. R.21(11) of the Building Rules provides for staircases, which mandates that the number of internal and external staircases required for any building shall be governed by the layout of the building, the number of floors and the number of exists as specified in sub r.(2) of R.24, and in any building exceeding four story's (including basement or sunken floors, if any) every floor area, over and below the plinth shall have at least two staircases, one of which may be an external stairway. The minimum width of the stair is provided in clauses (b) and (c) of R.21(11). R.21(12) deals with fire escape staircases, which stipulates that every building meant for human occupancy shall be provided with exits sufficient to permit safe escape of occupants in case of fire or other emergency and the exists shall be so located that the distance on each floor shall not exceed the limit that is given in the table therein. It is the common case that two staircases, one internal and another external are provided in the building in this case. 13. The petitioners have no contention that the staircases does not conform to the minimum width or the distance as stipulated in R.21(11) and R.24(2) of the Building Rules. It is the common case that two staircases, one internal and another external are provided in the building in this case. 13. The petitioners have no contention that the staircases does not conform to the minimum width or the distance as stipulated in R.21(11) and R.24(2) of the Building Rules. The only contention of the petitioners is that over and above the internal and external staircases, there should have been a separate third staircase being the fire escape staircase as mentioned i n R.21(12) of the Building Rules and since no such separate fire escape staircase is provided in this case, the construction is in violation of the Building Rules. 14. The Municipality as well as the Builder vehemently contended that the Kerala Building Rules stipulate only construction of external and internal staircases and there is no provision in the rules to put up a separate fire escape staircase over and above the internal and external staircases. According to them, it is clear from the rules that the external staircase can be very well used as the fire escape staircase. 15. It is clear from R.21(11) and R.24(2) of the Building Rules that the rules contemplate only internal and external staircases in buildings having four floors and above and the rules do not stipulate that over and above the internal and external staircases there should be a separate and distinct fire escape staircase. A careful reading of the rules clearly establishes that the intention is only to provide internal and external staircases and the external staircase can be used as the fire escape staircase and the requirement of one or more staircase for fire escape over and above the internal and external staircases is not contemplated in the rules. That fact is clear from R.21(12)(g) which stipulates that entrance to fire escapes shall be separate and removed from internal staircase and there is no stipulation that it should be separate from the external staircase also. Therefore, the contention mat since the 5th respondent has not provided a third staircase for fire escape, the construction of the building is against the Building Rules, is not sustainable. 16. Therefore, the contention mat since the 5th respondent has not provided a third staircase for fire escape, the construction of the building is against the Building Rules, is not sustainable. 16. It is also contended that even though the original licence issued and plan approved by the Municipality is for the construction of eight story's, the 5th respondent proposes to construct the building with 15 story's and the Municipality has recommended for the construction of seven more story's in gross violation of the Building Rules. 17. It is admitted by the respondents that the 5th respondent has approached the Government for the construction of seven more storeys over and above the eight storeys for which licence is granted and plan approved, and that application is forwarded by the Municipality to the Government. 18. It i s the common case that the Government of Kerala is the competent authority to exempt the builder from any of the Building Rules. It is submitted by the respondents that the request made by the 5th respondent for permission to construct seven more storeys over and above the eight storeys already permitted is pending consideration before the Government. It is upto the Government to consider the application filed by the 5th respondent for construction of seven more storeys over and above the eight storeys for which permission is already granted, on merits in accordance with law and to pass appropriate orders. Therefore, the contention raised by the petitioners that the 5th respondent is attempting to construct a 15 storeyed building in gross violation of the Building Rules in the place of the 8 storeyed building for which licence is granted and plan approved by the appropriate authority, need not be considered at this juncture. 19. It is seen that on the basis of the directions of this Court in the above O.P. dt. 20.8.1996 the 1st respondent filed a detailed additional counter-affidavit after inspecting the building which is being constructed stating that the building is being constructed in conformity with the Kerala Building Rules and there is no major deviation from the statutory requirement in the plan submitted by the 5th respondent and there is no violation of any of the provisions contained in R. 21 or R.24 of the Building Rules. Therefore, it is clear that the contentions raised by the petitioners in this case with regard to violation of the Building Rules are not true and are rather imaginary. 20. Considering the heavily increasing population in Kerala especially in urban areas and the acute scarcity of land for construction, construction of multi-storeyed buildings with residential apartments is inevitable, but the construction should be in conformity with the rules and regulations with regard to environmental protection and the Building Rules. If any building is constructed in violation of the Building Rules or any other law or rules pertaining to construction of buildings, the competent authority is clothed with sufficient powers including demolition of the building constructed unauthorisedly or in violation of the Building Rules or any other provision of law. The 1st respondent - Municipality should be vigilant in permitting construction only in accordance with the Building Rules and other provisions of law. The 1st respondent - Municipality is directed to verify whether the 5th respondent has put up the building in conformity with the approved plan, the Building Rules and other requirements of law at every stage and issue the occupancy certificate only on the absolute satisfaction that the construction is in accordance with the approved plan, the Building Rules and other requirements of law. With the above observations, O.P. No. 12706/95 is dismissed. O.P. Nos. 14351 & 14902 of 1995 are also dismissed since they have become infructuous. Under the circumstances, we direct the parties to bear their respective costs.